Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 230/2017

This   case has been filed by the complainant for getting compensation amount of Rs. 3,54,000/- alongwith litigation cost against OP Nos. 1 & 2 for wrong medical treatment of the complainant and for medical negligence and deficiency of service.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant visited at the hospital of Proforma OP No.1 on 21.12.2015 for pain  at her abdomen and there the consulting Dr. advised  the complainant  to undergo several tests including USG and after getting all test reports including USG Report went to the consulting Dr. who noted in the report sheet  that the complainant have / had 19 MM  Calculus  inside her “Gall Bladder” and advised the complainant for operation of the said Calculus of her Gall Bladder  and the said consulting Dr. had given her operation date after one month  and also prescribed medicines and thereafter the complainant after getting the operation date from Proforma OP No. 1 went to her father’s  house  at Village Nuntia, P.O. Mugkalyan, P.S. Bagnan, Howrah and there suddenly she felt / suffered  unbearable pain into her abdomen  and for that reason she visited at a local RMP ( registered medical practitioner)  Dr. Sandip Shee ( Proforma OP No. 3)  who referred the complainant to the OP No. 1 after mentioning  in his prescription pad with signature and on the basis of the said reference  the complainant visited at the Nursing Home  at OP No. 1 with said reference letter  of Proforma OP No. 3 on 24.12.2015 and there is the OP No. 2 Dr. after checking  her all medical papers  and reports admitted her at the OP No. 1 Nursing Home vide admission Registration No. 2286/2015 dtd. 24.12.2015 and  told the complainant to deposit Rs. 5,000/- as advance  of her operation but the husband of the complainant on the next date i.e. on 25.12.2015 paid  Rs. 5,000/- to the OP No. 1 Nursing Home  for  operation and the complainant’s operation was done by OP No. 2 Dr. on 25.12.2015 and after said operation  the complainant was discharged  from OP No. 1 Nursing Home on 27.12.2015 and at the time of discharge the husband of the complainant again  paid Rs. 4,000/- on 27.12.2015 to the OP No. 1  Nursing Home Authority.  It is submitted that the complainant after discharging from OP No. 1 Nursing Home  went back at her father’s house at Nuntia on the next day.  She again suffered unbearable pain  at her abdomen  and for that reason she again visited to the proforma OP No.3 and there the said Proforma OP No. 3 after checking  medical papers  told her that OP No. 2 Dr. wrongly operated appendix  in place of Calculus  in her Gall Bladder and then the relative of the complainant  visited to the OP Nos. 1 & 2 and demanded  all medical papers  in respect of complainant’s said operation and claimed compensation  from them for wrong operation  but OP Nos. 1 & 2 denied to give the same and then the complainant being inexperienced  about medical knowledge and getting no other alternative visited the Proforma OP No. 2 Dr. , again advised  for several medical tests of the complainant and after getting medical test reports it was again found that an ecohognic calculus  about 9 MM  in diameter is seen at the complainant’s Gall Bladder and thereafter the complainant had sent a letter through speed post to the OP No. 1 on 11.02.2016 and requested them  to supply all medical papers of her treatment during the period on 25.12.2015 to 27.12.2015 but the  OP No. 1 did not give any reply to the said letter and remains silent  and thereafter the complainant  visited  at the Proforma OP Nol. 4 Hospital at 11.05.2016 and there the attending Medical Officer after checking  her all medical reports admitted her for operation of Calculus  into her Gall Bladder  under Dr. Debjit Kr.  Roy and complainant’s operation was successfully  done there and she was discharged from the Proforma OP No. 4 Hospital on 15.05.2016 and the complainant had to pay total expenses  amounting to Rs. 45,000/- for medical tests and medicines  at the time of her 2^nd operation.  It is alleged that the complainant thereafter ledged complaints to the Proforma OP Nos. 5 & 6  on 01.02.2016 against OP Nos. 1 & 2 for her wrong treatment and requested them for punishment and claimed compensation  against OP Nos. 1 & 2.  It is  pointed out  that the dispute arising  between complainant and OP Nos. 1 & 2 is a consumer dispute within the meaning of Consumer Protection Act, 1986.  It is alleged that due to wrong medical treatment  and negligence on the part of OP Nos. 1 & 2  the complainant had to suffer financial loss  and also suffer mental pain and agony  and the cause of action  against the OPs arose in this case and i.e. continued .  For all these reasons  the complainant  has prayed compensation to the tune of Rs. 3,00,000/- cost of medical treatment to the tune of Rs. 54,000/- litigation cost.   

Defence Case

The OP Nos. 1 & 2 after receiving notice appeared in this case and contested this case by filing W/V where the OP Nos. 1 & 2 denied  each and every allegations of the complainant raised against the OP Nos. 1 & 2.  This specific case of the OP Nos. 1 & 2 is that the complaint case is not maintainable  either in its present form and in the eye of law and the complaint petition has been filed on flimsy ground  and with malafide intention .  It is the case of the OP Nos. 1 & 2  that when the complainant has come with complications of her abdomen  pain, the OP No.1 immediately admitted the complainant and he was attended OP No. 2 and OP No. 2 has done the right operation of the complainant which had to be done at the right point of time.  It is also stated that the appendicitis of the complainant was operated on 25.12.2016 and there Calculus  of Gall Bladder of the complainant was operated Proforma OP No. 4 during the period of 11.05.2016 to 15.05.2016 which is long after 5(five) months from the date of operation made by the OP No. 2 at the OP NO. 1 Nursing Home and this matter is clearly reflecting  that appendicitis  of the complainant should have   operated  first and moreover after operation of appendicitis   the OP No. 2 alongwith OP No.1 advised  the complainant to come after 7 days  for follow up  but the complainant never attended either to the OP No. 1 Nursing Home or before  OP No. 2 but on the contrary  admittedly the complainant was guided  by OP No. 3 i.e. RMP Dr. Sandip Shee  and if there is any negligence at all  i.e. on the part of the Proforma OP No. 3.  It is further case of the OP Nos. 1 & 2 that if the alleged condition of the complainant  allegedly deteriorated ,  then the complainant contacted   with the OP No. 4 after the gap and / or expiry of long 5(five) months  and therefore  from the conduct of the complainant it can be said and / or presumed that the complainant had the knowledge that she had Calculus  at Gall Bladder  and she had to operated the same as the appendix  of the complainant was found to be inflamed  and so the OP No. 2  operated the appendicitis  with the consent of the husband of complainant  has filed this instant case against the OP Nos. 1 & 2 to squeeze  money.  It is also submitted by the OP Nos. 1 & 2 that OP No. 2 had performed Lap Appendectomy as inflamed  appendix  is considered as contaminated surgery and so the OP No. 2 did not go for chelecystectomy  in  the same  sitting.   It is alleged that there is no deficiency of service  and negligence  of OP Nos. 1 & 2 and so this complaint case is required to be dismissed.

Points of consideration

On the basis of the pleadings of the parties this District Commission for the interest  of proper  and complete adjudication  of this case and also arriving at just and proper decision in this case, is going to adopt the following points of consideration :-

             (i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Has  the complainant    cause of action for filing this case or not ?

(iii)  Has this District Commission jurisdiction to try this case?

            (iv)      Is the complainant consumer  under the OPs or not?

 (v)   Whether the complainant is entitled to get compensation of Rs. 3,00,000/-, cost of medical expenses of Rs. 54,000/- and litigation cost or not?

 (vi)     To what other relief / reliefs the complainant is entitled to get in this case?

Evidence on  record

The complainant in order to prove the case  has filed evidence on affidavit  and against the said evidence on affidavit the OP Nos. 1 & 2 filed questionnaires  and the complainant had given reply against the said questionnaires of the OPs.

The OP Nos. 1 & 2 in order to disprove the case has filed evidence on affidavit and against the said evidence on affidavit  the complainant had filed questionnaire  and against the said questionnaire the OP Nos. 1 & 2 have filed reply.

Argument  highlighted  by the parties

In this instant case the complainant  and OP Nos. 1 & 2 have filed BNA.  Besides  filing BNA the complainant and OPs also have highlighted verbal argument and the complainant side as  well as the OP Nos. 1 & 2 in course of verbal argument has given emphasis on the evidence on record.

As per submission of the Ld. Advocate of OP Nos. 1 & 2  the evidence  and documents  available on record goes to show nothing in respect of deficiency of service  and negligence on the part of OP Nos. 1 & 2.  Besides verbal argument the OP Nos. 1 & 2 also referred the following case law :-

1. 2005 (6) SCC 1

Decision with reasons

The first four points of consideration are related  with the questions of maintainability of this case, jurisdiction matter, cause of action issue  and whether the complainant is a consumer under the OP Nos. 1 & 2 or not.  These four points of consideration are very vital points of consideration and the questions involved in these points of consideration are interlinked and / or interconnected with one another.  For that reason  and also for the interest of convenience of discussion all these four points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of deciding the fate of the above noted four points of consideration , there is urgent necessity of making scrutiny of the material of this case record as well as there is also urgency for scanning the evidence on record.

After going through the material of this case record, it is reflected that the complainant’s father house situated at Nuntia under P.S. Bagnan which is under the district of Howrah.  It is also important to note that the OP No. 1 is running the Nursing Home at Uluberia within the district of Howrah and OP No. 2 is also a practicing Dr. of Uluberia, Dist. Howrah.

All these factors are clearly reflecting that this District Commission has its territorial jurisdiction to try this case.  After making scrutiny of the material of this case record this District commission finds that the total claim of the complainant side is far below than that of the pecuniary limit of Rs. 20,00,000/- and for that reason this District Commission has its pecuniary jurisdiction to try this case.  Thus, it is crystal clear that this District Forum / commission has its territorial and pecuniary jurisdiction to try this case.

Now, the question is whether this case is maintainable  in its present form and in the eye of law or not.  In this regard, this District Commission on close examination of the pleadings of the parties as well as the evidence on record finds that the complainant has paid Rs. 9,000/- to the OP Nos. 1 & 2 for conducting operation on 25.12.2015 & 27.12.2015 respectively and the OP Nos. 1 & 2 received the said amount.  This factor is clearly reflecting that the compliant is a consumer  under the OP Nos. 1 &2 .  Moreover  as per Section 2 (1) (d)  of the Consumer Protection Act, 1986 ,  the complainant is a consumer under the OPs.  It is the settled principle of law that term  “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission.  This legal principle has been observed by Hon’ble Apex Court in the case of Chandra Rani Akhori and others Vs. M.A. Methusethupathi (Doctor and others) and it is reported in II (2022)CPJ 51(SC).

The decision of the Hon’ble Apex Court as well as the above noted discussion are clearly reflecting that this case is maintainable in its present form as well as in the eye of law and the complainant has cause of action in the matter of filing of this case.  In this regard, it is important to note that the complainant had claimed the papers of medical treatment for the period 25.12.2015 to 27.12.2015 from OP Nos. 1 & 2 but the OP Nos. 1 & 2 had not supplied the same to the complainant.  This factor is also reflecting that the complainant has cause of action for filing this case and the said cause of action has been continued.

A cumulative consideration of the above noted discussion goes to show that this case is maintainable in its present form  as well as in the eye of law, this District Commission / Forum has its jurisdiction to try this case, the complainant has cause of action for filing this case and the complainant is a consumer under the OP Nos. 1 & 2.  Thus, the above noted four points of consideration are decided in favour of the complainant side.

The point of consideration No. 4 has been adopted over the issue whether the complainant is entitled to get compensation of Rs. 3,00,000/- and entitled to get medical expenses of Rs. 54,000/- and also entitled to get litigation cost from the OP Nos. 1 & 2 or not  and the point of consideration No. 6 has been framed on the ground whether the complainant is entitled to get any other relief / reliefs from this case or not .

For the purpose of deciding the fate of the above noted two points of consideration this District Commission after going through the material of this case record finds that the OP No. 2 attended the complainant for the first time on 25.12.2015 after the complainant was admitted in the OP No. 1 Nursing Home.  It is revealed from the  material of this case record that OP No. 2 also clinically examined  the complainant and also examined the USG Report which suggested chelecystectomy and the case was planned for laparoscopic cholecystectomy.  This  factor is clearly reflecting that  the OP Nos. 1 & 2 has candidly admitted the fact that the complainant has been suffering from cholelithiasis at the Gall Bladder of the complainant.  In spite of that the Op Nos. 1 & 2 conducted the operation of appendix of the complainant and the said operation was done without making any clinical investigation  or any USG by the OP Nos. 1 & 2.  This factor is clearly reflecting  that there was gross error on the part of the OP Nos. 1 & 2 particularly  when the OP Nos. 1 & 2 after examining the papers of medical test reports conducted the said operation of appendix of the complainant.  This factor is clearly reflecting  that there was negligence  and deficiency of service on the part of the OP Nos. 1 & 2.  The Proforma OP No. 1  also suggested that the complainant had been suffering from Calculus  at her Gall Bladder.  In spite of seeing the said report  of the proforma OP No. 1, the OP Nos. 1 & 2 conducted the operation of appendix of the complainant.  This factor  is also reflecting that there serious fault  on the part of the OP Nos. 1 & 2.  Thus, it is crystal clear  that OP Nos. 1 & 2  are liable to pay compensation for wrong operation, wrong treatment of the complainant and also liable to pay the medical expenses which the complainant had to pay for the said operation.

In this regard, it is admitted fact that the operation of cholelithiasis was done at Proforma  OP No. 4 hospital successfully and thereafter the complainant  became physically fit.  But fact remains  that the complainant had  to pay cost of Rs. 45,000/- to the Proforma OP No. 4 for such operation and medical treatment. In view of admission on the part of OP Nos. 1 & 2 the case laws filed by OP Nos. 1 & 2 are not acceptable.  It is the case of the OP Nos. 1 & 2 that there was urgency of making operation of appendix of the complainant as it was found to be inflamed but in support of such contention no expert evidence or documentary evidence has been filed and for that reason this part of argument on the part of the OP Nos. 1 & 2 cannot be accepted.   So,  the OP Nos. 1 & 2 are also liable to pay the medical expenses of Rs. 45,000 + 9,000/- total Rs. 54,000/- to the complainant.

After going through the material of this case record it appears that the complainant has not highlighted any claim against the OP Nos. 3 to 6.  As there is no claim against Proforma OP Nos. 3 to 6 , this District Commission has no other alternative but to dismiss  this case against the Proforma OP Nos. 3 to 6. 

Recapitulating  the above noted discussion this District Commission finds that the complainant has proved her case in respect of all the points of consideration and it is revealed that the complainant is entitled to get compensation of Rs. 3,00,000/- and cost of medical treatment of Rs. 54,000/- and litigation cost of Rs. 6,000/- from the OP Nos. 1 & 2.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 230/2017 be and the same is allowed on contest against OP Nos. 1 & 2 and it is dismissed against Proforma OP Nos. 3 to 6.

It is held that the OP Nos. 1 & 2 jointly and / or severally liable to pay compensation of Rs. 3, 00,000/-, cost of medical treatment of Rs. 54,000/- and litigation cost of Rs. 6,000/- to the complainant.  So, the OP Nos. 1 & 2 are specifically directed to pay the said amount within 2(two) months from the date of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.  

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President